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Carrying scheduled drugs interstate

CAUTION: I NO LONGER THINK THE ANSWER HERE IS CORRECT (SEE ‘Carrying Scheduled Drugs interstate v 2 (June 27, 2016). I LEAVE THIS POST HERE SO, WHEN READ WITH THE LATER POST THE ENTIRE REASONING CAN BE SEEN. THIS POST SHOULD NOT BE RELIED UPON.

I’ve been writing this blog since 2009 so today most questions that come in are at least familiar and I’m confident I know what the answers going to be even before I start checking. Occasionally a question raises something of particular novelty and complexity (see for example Why dangerous goods placards ARE NOT required on an ambulance! (May 13, 2015)), and sometimes answers that are just – surprising. Today’s question is one of those:

Essentially, ACT St John are unable to cover a duty request and as such it had come across the border to NSW. To allow appropriate kitting and prep, is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?) I’ve read through Poisons Acts and first aid kit licencing. According to the Poisons Act (ACT), the territory will recognise any licence that is issued under commonwealth law. NSW however is a different beast. No mutual recognition. However, to carry/use some of the same meds in NSW only needs a work cover approved first aid cert…

I confess this is an issue I’d ‘skirted’ around in earlier answers that is the question asked didn’t need me to address this head on, so I didn’t but now I have no choice and it appears that the answer is ‘No, an interstate authority is not sufficient’. As I say I think this answer is both surprising and important for the sector so in this blog I’m going to limit myself to the facts given, ie St John volunteers crossing between NSW and the ACT. I may take time to write a more detailed paper looking at all health professionals (in particular doctors, nurses and paramedics) and all states and look to publish that in an appropriate journal, perhaps the Australian Journal of Emergency Management. Watch this space and I’ll let you know if and when that happens.

THE AUSTRALIAN CAPITAL TERRITORY (‘the ACT’)

In the ACT the relevant law is set out in the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT). The Act uses the term ‘regulated substance’ to mean ‘a medicine, poison, prohibited substance or schedule 10 substance’ (s 10). Medicines are listed in schedules 2, 3, 4 and 8 of the poisons standard (s 11) in force under the Therapeutic Goods Act 1989 (Cth) (s 15). A ‘declared substance’ is any medicine (ie schedule 2, 3, 4 or 8 drug), or other prohibited poison or substance (s 25).

(a) the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing; or

(b) the person may or must deal with the medicine or poison under a Commonwealth Act, this Act or another territory law; or

(c) the chief health officer approves the dealing under a regulation; or

(d) the dealing is otherwise authorised by regulation.

There is no general provision that says an authority issued in another state applies in the Australian Capital Territory nor is there any overriding rule that says interstate licences are to be accepted in the Territory. We can draw an analogy with driving, a person can drive in the ACT with a NSW licence not because of some general rule that the ACT will recognise interstate licences in all areas, but because of a specific rule set out in the Road Transport (Driver Licensing) Act 1999 (ACT) s 31. Equally if it was intended that a person did not need an ACT authority under the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) if they held an authority under a law of another state or territory, the Act would say that. It does not.

The Act does say that where a person has an authority under a ‘corresponding law’ (that is ‘a law of a State corresponding, or substantially corresponding, to this Act’ (Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) Dictionary) then that authority does, in limited circumstances, apply in the ACT. The limited circumstances relate to:

Further a ‘regulation may also make provision in relation to the recognition of authorisations (however described) under corresponding laws and the circumstances in which an authorisation to deal with a regulated thing under a corresponding law authorises people to deal with the regulated thing in the ACT’ (Medicines, Poisons and Therapeutic Goods Act 2008 s 186(2)).

An example of a regulation that allows interstate practitioners to carry and use medicines in the ACT is found in the Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) Schedule 1, Part 1.1. This regulation says ‘Ambulance officers employed by the Commonwealth, a Territory or a State are authorised to obtain, possess and administer medicines within the scope of their employment’. There is no other regulation that would be applicable in the circumstances described by my correspondent.

Conclusion – ACT

The conclusion has to be that to possess, supply or administer a schedule 2, 3, 4 or 8 medicine in the ACT a person has to have an authority issued by the Chief Health Officer of the ACT. Presumably members of St John Ambulance Australia (NSW) do not have that authority. It follows that if they wanted to travel to do duty in the ACT any authority they have under the relevant NSW law would not be sufficient and they would have to leave their scheduled drugs at the border.

NEW SOUTH WALES (NSW)

The NSW law does give some exemptions from compliance with the NSW Act where a person has an exemption under a law in another jurisdiction. These exemptions are limited to Packaging and Labelling (s 10 (Schedules 1, 2, 3, 5, 6 and 7), s 28 (Schedule 4) and s 72 (Schedule 8)).

(a) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.

That would give little comfort to ambulance officers from the ACT, Queensland or Victoria who may have to cross the border to provide care.

Regulation 170 says ‘The Director-General may issue authorities for the purposes of the Act and this Regulation’. It is not possible to access the authorities that may have been issued so the Director-General may well have issued authorities to interstate ambulance services or St John Ambulance (ACT) but even so the authority has to come from NSW. There is no provision that would allow members of St John Ambulance (ACT) to carry drugs that they are authorised to use in the ACT, into NSW.

THE COMMONWEALTH

Under the Australian Constitution, the Commonwealth may make laws for ‘The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States’ (Australian Constitution, s 51(xxv)). The Commonwealth could therefore pass a law to the effect that a licence or authority in one state is sufficient in any other state or territory.

The closest that the Commonwealth has come is in the Mutual Recognition Act 1992 (Cth). That Act provides that ‘a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation’ (s 17). That is, by virtue of this Act, if a person is registered to practice a profession in one state, they can apply to the registration in another state to be registered to practice their profession in that state, too. That is not relevant in our context as first aid volunteers (and paramedics) are not registered for an occupation in any state. This Act therefore provides no assistance.

The Constitution also says:

‘… trade, commerce, and intercourse among the States … shall be absolutely free’ (s 92);

‘A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State’ (s 117); and

‘Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State’ (s 118).

One could try a constitutional argument that failing to honour an authority in one state is to restrict interstate trade and commerce, is to impose a disability upon ‘him’ that he is not subject to in his home state and fails to give full faith and credit to the laws of the State. I’m no constitutional law expert but I wouldn’t hold out much hope on that because the issue of free interstate trade is really that the states can’t impose customs duties on the state borders; that a person needs authority in one state is equally true in all states and one can give full faith and credit to ‘the laws’ without necessarily given full faith and credit to each licence. If that were not the case provisions like the Road Transport (Driver Licensing) Act 1999 (ACT) s 31, discussed above, would not be necessary. In any event a St John volunteer should not expect to have to go to the High Court of Australia to determine if carrying scheduled drugs interstate is lawful.

CONCLUSION

As I say this is a surprising conclusion but the conclusion is that an authority to use scheduled drugs in one state or territory is not transferrable to another. To return to my correspondent’s question:

‘Is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?)’

It is an interesting question, and how do ambulance services conduct interstate work? A doctor on board will help as doctors are nationally registered and carry their authority because of their registration. As I say to move to all professions and all states will require some further work. Watch this space.

Some service providers have been known to operate here (ACT) from interstate, with sceduled medications and in some cases, practicing at a climical capacity that would ordinarily require an approval under the emergencies act 2004. What might be the case there, when such activity comes to light?

According to the current ACT legislation website there are four exemptions to allow private event first aiders; they are Emergencies (Service Provider) Approval 2015 (No 1) (St John Ambulance Australia (ACT)); Emergencies (Service Provider) Approval 2015 (No 4) (First Aid Australia Pty Ltd trading as Ambulance Service Australia); Emergencies (Service Provider) Approval 2015 (No 5) (Jason John Preston, trading as First Aid Services) and Emergencies (Service Provider) Approval 2015 (No 9) (State Medical Assistance Pty Ltd trading as State Medical Assistance). I do not know whether any of these providers are based interstate.

Any person or company, whether based in the ACT or interstate, who provides ambulance services (ie ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’) without an approval is committing an offence (Emergencies Act 2004 (ACT) s 63).

As for the use of scheduled drugs, the approval under the Emergencies Act does not allow the use of scheduled drugs. Ambulance providers would need to obtain a ‘first aid kit licence’ from the ACT Chief Officer of Health (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) cl 450-451; 610-612). Without that licence they would be committing an offence contrary to that legislation too. Their interstate authority would not be enough to authorise the use of those drugs in the ACT.